Proposals to Expand Basel Convention Controls on Circular Economy Trade

Parties to the Basel Convention are considering legally binding amendments to the Convention that would dramatically expand controls and trade bans governing international shipments of used products managed for reuse and non-hazardous electrical and electronic waste (e-waste) destined for materials recovery.

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention) is an international agreement among 188 Parties covering transboundary shipments of hazardous and “other” waste. The Convention informs legal requirements for waste classification and trade flows and serves as the de facto global legal framework governing the circular economy. The Convention has particular relevance to U.S. companies as trade in covered wastes with the U.S. is banned in most instances because the U.S. is a non-party to the Convention.

EU Proposal for “Preparing for Reuse” Operation

The EU has proposed a new recovery operation in Annex IV of the Basel Convention – “R20: Preparing for reuse (e.g. checking, cleaning, repair, refurbishment).” Under the Convention, materials or equipment shipped to a final disposal operation (e.g., landfilling) or recovery operation (e.g., metals recycling) are defined as wastes. The EU proposal for a new R20 operation would add a new waste operation to the Convention and expand the universe of used products and equipment qualifying as “waste” under the agreement. Read in combination with other proposals to control all electrical and electronic waste under the Convention, the proposed EU amendment would likely prompt many countries world-wide to apply waste import and export controls on shipments of used products destined for repair and refurbishment.

While the EU has indicated that it only intends for its proposal to cover equipment that has already become waste (e.g., has been brought to a community waste collection point), the language as drafted makes it likely that governments will default to a waste classification for most used equipment managed for repair, refurbishment and reuse.

This EU proposal marks a significant departure from current practices and interpretations of the Basel Convention. Under the Technical Guidelines adopted on an interim basis at the last Conference of the Parties, used electrical and electronic equipment destined for legitimate repair, refurbishment, reuse, or failure analysis does not qualify as “waste” under the Convention so long as it meets certain assurance, handling and documentation requirements.

Switzerland and Ghana Proposal to Control Non-Hazardous E-Waste

Switzerland and Ghana have proposed an amendment to list all non-hazardous e-waste as “other” waste controlled under Annex II of the Convention. As proposed, a new Y49 entry would cover all e-waste and its components and constituents not characterized as hazardous. Currently the Convention does not include controls on non-hazardous e-waste. “Other” wastes on Annex II of the Basel Convention are subject to extensive prior-informed-consent, documentation, financial, and other requirements. Wastes on Annex II are also subject to various trade bans, including a ban on trade with non-Parties.

The Swiss and Ghanaian proposal would eliminate the existing B1110 entry on Annex IX for non-hazardous electronic waste and the existing B4030 entry on Annex IX for used single-use cameras with batteries not included on list A. Wastes falling in Annex IX like B1110 and B4030 are not currently controlled under the Convention. Under the proposal from Switzerland and Ghana, however, those wastes would be covered under the Annex II Y49 listing and would be subject to prior-informed-consent controls, documentation and contract requirements, and trade bans under the Convention. Parties have been negotiating updates to both the hazardous and non-hazardous waste listings for electrical and electronic wastes in Annex VIII and IX respectively. The Swiss/Ghanaian proposal is now likely to overtake those negotiations as Parties consider a far more significant expansion of the Convention.

The Secretariat of the Basel Convention is expected to accept comments on the proposals from late January to March 17, 2021. The Parties to the Convention will then consider the proposals for adoption at the Fifteenth Conference of the Parties (COP-15), scheduled for July 19 to 30, 2021, in Geneva.

Background on the Basel Convention

The Basel Convention is a global agreement governing the classification and transboundary movement of wastes. Hazardous and “other” wastes regulated under the Convention are subject to robust and often cumbersome written prior notice and informed consent requirements, documentation and contract requirements, and, in some instances, trade bans. Parties must also determine that any waste shipments will be managed in an “environmentally sound manner.”

The ability to move used equipment and products around the globe for repair, reuse, and recycling is critical to facilitating a circular economy. A truly global, circular economy allows for the decoupling of economic activity from the consumption of finite resources. By eliminating waste and recovering resources embedded in products, companies and consumers can continue deriving value from products while minimizing the costs and impacts of extraction, production, and disposal. The Basel Convention will be a key piece to achieving the benefits of a global circular economy or failing to do so, given the Convention’s influence on the ability to move products for repair, reuse, and recycling.

The United States remains a non-party observer to the Convention. The United States has signed but not ratified the Convention and it has been the view of policymakers that EPA will need additional legal authorities to ensure the United States is able to meet its legal obligations under the treaty. Over time, non-party status has significantly undermined U.S. influence over the evolution of the Convention. It also means that Parties are prohibited from trading in covered wastes with the United States absent an “article 11 Agreement.”

The Parties recently amended the Convention to regulate trade in most plastics destined for disposal or recycling. Those amendments took effect on January 1, 2021. The Convention may be further amended in mid-2021 to impose significant burdens on trade in all electrical and electronic waste, and significantly complicate international trade in used products and equipment managed for repair and reuse. Longer term, Parties are also updating core annexes for listed constituents/waste streams and hazardous characteristics used to define the scope of materials classified as hazardous waste. These initiatives occur as companies in many sectors are working across the value chain to promote the development of a more circular economy – initiatives that will likely require new trade-facilitation mechanisms rather than new trade restrictions.

Beveridge & Diamond's Consumer Products and Product Stewardship, Global Supply Chains practices work with U.S. and multinational companies that make, distribute, transport, or sell consumer products in a hyper-competitive and evolving consumer goods market. Firm attorneys have represented business interests in the negotiation and implementation of the Basel Convention and related international initiatives relevant to the circular economy in the U.S. and globally. For more information, please contact the authors.